#19571 - 2. Criminal Litigation 2023 2024 Documents And Disclosure - BPC Criminal Litigation (formerly BPTC) 2024/2025

Investigators must record all material which may be relevant. This is a widely drawn definition.

• the test of what are reasonable investigative steps in the circumstances is likely to start from the position of a persistent prosecutor who does not readily take 'no' for an answer

• The disclosure officer must be independent of the investigation

Material must be listed on a schedule containing sufficient detail.

Prosecution advocates must ensure that all material which ought to be disclosed is disclosed to the defence, this decision must be kept under review throughout all stages of the case. This is a continuing duty.

• Dip sample of digital material where there is too much to review. Disclose how the dip sample came about.

Unused material test:

• Requires a prosecutor to disclose previously undisclosed material to the accused if it ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.’

If there is no disclosable material, the accused must be given a written statement to that effect.

Material must not be disclosed if it is not in the public interest or if disclosure is prohibited by the IPA 2016, s. 56.

In summary trials, a streamlined disclosure certificate should be used where a not guilty plea is anticipated and which is reasonably expected to be suitable for summary trial.

Drafts should be kept for disclosure, duplicates can be disposed of.

Crown Court: No statutory time limit, the default position is that disclosure must be made as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case. For large and complex cases: Disclosure Management Document

Magistrate’s Court: The schedule must be disclosed to the accused either at the hearing at which a not guilty plea is entered, or as soon as possible following a formal indication from the accused or the accused’s representative that a not guilty plea will be entered at the hearing.

At any other time, disclosure must be disclosed to the accused as soon as reasonably practicable. Sometimes this may be before the first hearings e.g in the interest and fairness and justice for bail.

If the prosecution have not complied with further disclosure, an accused may apply for an order of material which should have been disclosed.

The duties terminate with conviction, acquittal or discontinuation of proceedings

Once case is sent to the CC defence statement within 28 days of prosecution disclosure (may apply for an extension before the deadline expires):

• Defence

• Matters of fact which the accused takes issue with and why

• What the accused intends to rely on

• Any points of law

• Alibi - names, addresses, DOB

• Witnesses - identifying information. Notice of a witness 14 days (summary), 28 days (CC) after disclosure. No witness information is required in a non-alibi case

• Can simply require the crown to prove their case

Must be provided as soon as reasonably practicable

No obligation to provide a defence statement in summary trial - if they choose to, must be within 14 days of prosecution disclosure.

If not done in time sanctions

Public interest...